Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, KIRBY, AND CALLINAN JJ

MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS APPELLANT

AND

NAIMA KHAWAR & ORS RESPONDENTS

Minister for Immigration and Multicultural Affairs v Khawar

[2002] HCA 14

11 April 2002

S128/2001

ORDER

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation:

N J Williams SC with J D Smith and M N Allars for the appellant (instructed by Australian Government Solicitor)

J Basten QC with S E Pritchard for the respondents (instructed by Coelho & Coelho)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Minister for Immigration and Multicultural Affairs v Khawar

Immigration – Refugees – Application for protection visa – Well-founded fear of persecution – Applicant, a citizen of Pakistan, allegedly victim of domestic violence at the hands of her husband and his family – Whether failure by State to provide effective police protection against domestic violence capable of constituting persecution for a Convention reason where the feared violence is perpetrated by non-State agents for non‑Convention reasons – Whether Convention requirement that putative refugee be "unwilling to avail himself of the protection" of the country of nationality refers to protection by the State within the country of origin or to diplomatic or consular protection available to citizens who are outside the country of origin – Whether selective or discriminatory failure by State to enforce the criminal law against non-State actors who assault members of a particular social group capable of constituting persecution under the Convention.

Immigration – Refugees – Application for protection visa – Membership of a particular social group – Applicant, a citizen of Pakistan, allegedly victim of domestic violence at the hands of her husband and his family – Whether "women in Pakistan" a particular social group – Whether applicant may fall within a more narrowly defined social group.